Not in My Backyard: Executive Order 12,898 and Title VI as Tools for Achieving Environmental Justice
Clearly, communities of color and low-income communities are disproportionately affected by siting and permitting decisions. The Commission is aware that environmental justice concerns are also raised in the context of other activities that create environmental and human health risks, such as transportation equity and fairness in the placement of sound barriers along freeways, the use of diesel buses in minority and low-income communities, light rail systems running underground in tunnels in affluent suburban communities and at street level in minority and low-income communities, and the placement of bus depots in minority communities.
The Commission examined the implementation of Executive Order 12,898, which incorporates environmental justice into federal agency programs and activities, and the use of Title VI nondiscrimination regulations as environmental justice enforcement tools. In particular, the Commission examined how federal agencies handle Title VI complaints, the impact of court decisions limiting private rights of action under § 602 of Title VI, how agencies provide communities meaningful public participation in environmental decision-making, the use of informal resolution of Title VI complaints, the importance of data collection and scientific research in establishing the causal relationship between environmental factors and adverse human health risks, and federal government accountability and program evaluation criteria. The Commission’s findings and recommendations related to these issues are presented below.
1. The Title VI Administrative Process as an Environmental Justice Tool
The Commission, based on its examination of the processing of Title VI complaints, finds that while the backlog of Title VI complaints at EPA has decreased, there are still complaints at the agency that have been pending for extended periods of time. The Commission finds that few Title VI complaints are upheld by federal agencies and that most are dismissed for nonsubstantive reasons. The Commission further finds that, when complaints involve several federal agencies, there is a lack of clear guidance that is readily available to stakeholders explaining which agency has jurisdiction, how that decision was made, and who is responsible for notifying the parties in the complaint of the status of the complaint.
The issuance of final Title VI guidance by EPA is still pending. The Commission finds that in the absence of final guidance, many stakeholders remain uncertain about the use and effectiveness of Title VI in protecting minority and poor communities that are disproportionately and adversely affected by environmental decisions.
Finally, the Commission finds that current funding and staffing levels undermine meaningful Title VI enforcement at a time when there are increasing judicial barriers to enforcing Title VI.
Therefore, the Commission makes the following recommendations concerning the effective use of Title VI enforcement programs to ensure that communities adversely affected by environmental decisions have access to a viable administrative remedy:
1.1 EPA should avoid any further unnecessary delays and issue a final Title VI guidance on processing complaints and methods to improve permitting programs. When this is accomplished, stakeholders will have a clear understanding of strategies to avoid environmental justice issues that may lead to Title VI complaints, as well as of how EPA’s Office of Civil Rights analyzes and resolves these complaints.
1.2 In the appropriate circumstances, EPA should conduct independent analyses of adverse disparate impacts to determine if they actually are present in a given community. While the agency should review analyses from recipients and complainants, it should not solely rely on them as a basis for its administrative Title VI decisions.
1.3 In its 1975 report, The Federal Civil Rights Enforcement Effort–1974, the Commission on Civil Rights supported terminating federal funding in instances of noncompliance with Title VI as an appropriate remedy, when it has been determined that fund termination would not have a detrimental effect on the health of the public. The Commission again urges the federal agencies to use all available tools to protect the precarious health status of the poor and people of color, whose overall lower health status can be exacerbated by exposure to environmental hazards.
1.4 EPA’s final investigative guidance should eliminate the “authority to consider” provision that applies to state funding recipients because the provision unnecessarily limits EPA’s Title VI adverse disparate impact investigations and the ability of communities to establish adverse disparate impact. This is especially a problem where states either create laws and regulations or are shielded by existing state laws and regulations that restrict or limit what is within their “authority to consider” when determining adverse disparate impact in their permitting process.
1.5 EPA should establish guidance for its state funding recipients that incorporates an inclusive definition of adverse disparate impact, including socioeconomic, health, and environmental factors that may disproportionately affect minority and low-income communities. The agency must encourage its funding recipients to broadly define what constitutes an adverse impact.
1.6 Federal agencies should clarify their requirements for the exercise of shared and sole jurisdictional responsibilities in investigating and resolving Title VI complaints, in instances where Title VI complaints involve two or more federal agencies. Establishing and providing environmental justice stakeholders with easy access to these policies would minimize the amount of time to administratively process complaints.
1.7 Federal agencies should establish clear notification requirements to all parties involved in Title VI complaints of the status of those complaints, as well as the shared, transferred, or sole jurisdiction of the federal agencies responsible for investigating and resolving the complaints.
1.8 Federal agencies should establish formal appeal procedures for their decisions. Currently, although EPA may reconsider its Title VI decisions, it is uncertain what factors are used to determine when this can occur, as well as what criteria would be considered in the reconsideration. In other federal agencies, no appeal mechanisms exist at all.
1.9 Once federal agencies have established procedures for the right of appeal, appropriate mechanisms should be instituted for notifying the parties of when their complaints are ready for appeal and advising the parties on the procedure for filing appeals.
1.10 EPA and other federal agencies should enforce or reform their penalty policies to enhance incentives for compliance and assess penalties for willful, repeated noncompliance by any facility located in a low-income and/or minority community.
1.11 Federal agencies should implement formal Title VI compliance review programs to ensure nondiscrimination in programs and activities receiving federal funding. These compliance review programs must be provided sufficient staff and funding in order to be most effective.
1.12 Similar to EPA’s Draft Revised Investigation Guidance and Draft Recipient Guidance, other federal agencies should develop formal guidance for investigating Title VI administrative complaints and activities of their funding recipients that have implications for human health and the environment. Clear guidance is required if all stakeholders are to understand what actions constitute a violation of Title VI, how complaints will be processed and investigated, and what actions can be taken to prevent or decrease Title VI complaints.
2. Judicial Enforcement of Title VI
The Supreme Court in Alexander v. Sandoval ruled that there is no private right of action for agency regulations promulgated under § 602 of Title VI. This ruling eliminates a major enforcement tool used by civil rights and environmental justice groups. South Camden Citizens in Action v. New Jersey Department of Environmental Protection, a Third Circuit case, ruled that in addition to having no private right of action under § 602, agency disparate impact regulations under § 602 do not create an enforceable private right of action under 42 U.S.C. § 1983. The Supreme Court heightened the standard for § 1983 claims in Gonzaga by requiring that congressional intent to create rights under § 1983 be clear and unambiguous.
Based on these judicial limitations, the Commission finds that both civil rights groups and environmental justice groups are left with few legal channels for challenging disparate impact discrimination under Title VI. While § 1983 is a tool that can be utilized in federal courts that have not barred this enforcement, much of these groups’ civil rights enforcement attempts must be at the administrative level. Therefore, the Commission makes the following recommendations:
2.1 In light of the Sandoval, South Camden, and Gonzaga decisions, Congress should pass a Civil Rights Restoration Act to clearly and unambiguously provide for a private right of action for disparate impact claims under § 602 of Title VI and § 1983.
2.2 In light of the currently limited legal enforceability of disparate impact discrimination regulations promulgated under § 602 of Title VI, federal agencies providing financial assistance to state and local agencies must vigorously enforce their existing nondiscrimination regulations by assuming greater oversight responsibility, implementing effective policy and guidelines for administrative enforcement of Title VI violations, and imposing appropriate penalties when violations of Title VI occur.
3. Meaningful Public Participation
Meaningful public participation by affected communities in the decision-making process is one of the cornerstones of environmental justice. The input of communities of color and low-income communities is integral to decision-making, planning, monitoring, problem-solving, and implementation and evaluation of environmental policies and practices.
Most of the federal agencies reviewed by the Commission have made some progress conducting outreach and engaging minority and poor communities in meaningful public participation and, to a lesser extent, in decision-making processes, but more work remains to be done. In this regard, the Commission finds that minority and low-income communities still do not fully participate in the process because of language and cultural barriers and lack of access to information. The Commission also finds that stringent enforcement of public participation requirements is not guaranteed in legislation, and that agencies continue to operate decentralized public participation programs, resulting in poor coordination, oversight, and accountability. Therefore, the Commission makes the following recommendations to enhance and strengthen agencies’ meaningful public participation efforts:
3.1 Stringent enforcement should be guaranteed in legislation with federal requirements ensuring that all affected parties are at the table with adequate public support. Such legislation could, for example, specifically provide for increased public comment periods or mandate public hearings in situations where there are major projects near minority communities.
3.2 Federal agencies should develop where needed, and reform where necessary, centralized agencywide and programwide public participation policies to promote more meaningful and binding requirements for “early and often” participation. These should provide communities with a basic right to be an integral part of decision-making, planning, monitoring, problem-solving, and implementation and evaluation of environmental policies and practices.
3.3 Federal agencies and their funding recipients should integrate early public participation into agency programs and activities, including permitting and siting. This affords the community the ability to identify concerns early and to avoid the mistrust communities may normally feel by being excluded from early decision-making processes.
3.4 Federal agencies should not waive or limit environmental reviews or reduce the time periods for public comment under NEPA for proposed projects that could affect minority communities.
3.5 Federal agencies should translate relevant government and industry information into multiple languages other than English to ensure that communities are able to participate effectively in the decision-making process.
3.6 For notices or other information pertaining to proposed projects that affect specific minority communities, federal agencies should undertake additional efforts to ensure that the information is translated into the native languages of those communities.
3.7 Meaningful participation also means that all public meetings should be conducted in a manner that is more accessible to the affected community, in both location and timing of the meetings.
3.8 Federal agencies should advertise the meetings by using media and other forms of communication, but especially media serving communities of color. When utilizing print media, the agencies should prominently publish the information.
3.9 Resources should be available for outreach workers and translation services when English is not the primary language in the affected community. Community members should not bear the burden of providing these translations.
3.10 Federal agencies should involve tribal membership in the identification and prioritization of environmental issues.
3.11 Once communities are able to secure more meaningful public participation, federal agencies should be more willing to use the communities’ environmental justice concerns as a basis for altering the course of decision-making.
3.12 Federal agencies and their funding recipients should conduct assessments to determine to what extent their programs and initiatives result in increased public participation and to emphasize accountability.
3.13 Agency representatives should be given mandatory training in encouraging effective public participation, and then be held accountable for effective program implementation and incorporation of meaningful public participation into the programs.
3.14 Environmental justice performance standards should be incorporated into government officials’ job descriptions and performance evaluations, in order to measure both their obligations to ensure early public participation, but also to require that they complete follow-up work after the communities have voiced their concerns.
3.15 In order to signal a commitment to requiring meaningful public participation, EPA should reinstate, implement, and enforce the portion of its 1981 public involvement policy that included a provision for withholding grant funds from grantees whose public involvement activities are insufficient.
4. Alternative Dispute Resolution
During the last two decades, agencies and some environmental justice advocates have shown increasing support of alternative dispute resolution (ADR) as a way of resolving environmental conflicts with communities. EPA’s Title VI regulations, for example, require that complaints be resolved through ADR whenever possible. The Commission finds that agencies still have not fully recognized the unique needs of those communities in the ADR process. As a result, ADR, at least in its current form, does not safeguard against the unequal power differential that exists between industry and communities.
Therefore, the Commission recommends that federal agencies undertake the following measures to ensure that ADR is an effective enforcement and complaint management tool:
4.1 Study different approaches to ADR and implement one that accounts for inequalities in bargaining power between the agency, industry, and the complainant.
4.2 Develop clear procedures for the ADR process that take those inequalities into account.
4.3 Focus on eliminating and remedying systemic discrimination, not just reaching consensus in individual cases.
4.4 Provide for more formal methods of discovery and other procedural safeguards, such as enforcement authority for the third-party neutral, which is needed to level the playing field and ensure equal access to information.
4.5 Require that the ADR process and outcomes be more accessible to public scrutiny (e.g., limit the use of confidentiality or nondisclosure agreements as to the ADR’s findings and outcomes).
4.6 Provide technical expertise to the affected communities and not require communities to bear significant mediation costs.
4.7 Develop a system of precedence so that communities and industry can rely on previous decisions.
4.8 Ensure that all parties for whom the ADR would substantially affect be involved in the process.
4.9 Be aware of historic cultural sensitivities and not use ADR where such beliefs could be substantially compromised (e.g., siting facilities on sacred burial grounds).
5. Interagency Working Group
Executive Order 12,898 created a federal Interagency Working Group on Environmental Justice (IWG). The IWG, through its Action Agenda, created demonstration projects to tackle community environmental justice concerns. The Commission finds that demonstration projects can successfully involve communities in environmental problem-solving including, but not limited to, community redevelopment, quality of life, and health issues. The Commission, however, also finds that there are no established evaluation criteria for measuring the outcomes of these programs.
The proposed Environmental Justice Act would abolish the IWG and constitute a new working group. This new working group, in addition to assuming the functions of the IWG, would be required to hold public meetings and actively seek meaningful public participation. The Commission, while it recognizes the strides IWG has made during the first few years of its implementation, finds that the creation of a new working group as proposed in the Environmental Justice Act would provide the public greater access to environmental decision-making and strengthen enforcement of discrimination complaints. Should the proposed Environmental Justice Act not become law, the Commission continues to see value in the interagency approach.
Therefore, the Commission recommends that:
5.1 The Interagency Working Group should be guaranteed and funded in federal legislation, as legislation may be needed to ensure continuing federal interagency cooperation on environmental justice programs.
5.2 EPA and the other federal agencies should support advancement of the Action Agenda and its problem-solving models and continue to select demonstration projects.
5.3 EPA should finalize and implement its evaluation framework in order to measure the success of the projects.
5.4 Once the framework has been implemented, EPA should apply the “lessons learned” in its current and future demonstration projects.
5.5 Since IWG’s collaborative approach may not be appropriate for all situations, policy makers should examine the “lessons learned” as the projects develop, to better inform potential legislative or other proposals.
6. Data Collection and Technical Assistance
Executive Order 12,898 realizes the importance of gathering scientific and technical data. There is, however, inadequate literature on the relationship between environmental pollutants and health status. The Commission finds that more research clarifying this relationship and closer collaboration between health and environmental communities are needed. The need for more research, however, should not be used as an excuse for agency inaction or to deny that there is any relationship between the environmental factors and human health.
Clearly, successfully challenging decisions administratively and in the courts under Title VI is related to having access to and understanding scientific research on the environmental factors and human health. The Commission finds that the federal agencies it reviewed do not sufficiently collect, maintain, and analyze environmental and human health data. Most importantly, available data must be disaggregated by race, ethnicity, income, geographic location, and other socioeconomic factors because this information is critical to making informed policy decisions and enforcing the civil rights of minority and low-income populations.
The Commission also finds that agencies do not make sufficient use of technical assistance grants, or similar grant programs, to provide scientific and technical information to communities. In addition, efforts to make the information accessible by providing it in plain language or nonscientific language must be increased.
Therefore, the Commission recommends the following measures:
6.1 Federal agencies should create and support a closer relationship between the health policy community and the environmental community through increased availability of technical assistance grants.
6.2 Federal agencies should conduct, and support others in conducting, more scientific research on the relationship between the levels and types of exposures to environmental pollutants/ hazards and human health status/outcomes in communities of color and poor communities.
6.3 Federal agencies conducting research on human health and the environment, and their technical assistance grant recipients, should also include the development of interventions to reduce or prevent health risks for all people, but especially overburdened minority and poor communities.
6.4 Federal agencies conducting research on human health and the environment, and their technical assistance grant recipients, should consider race, ethnicity, national origin, age, gender, and income when examining the environmental, human health, and economic effects of environmental decisions.
6.5 Federal agencies should disaggregate data on risks and exposures by race, ethnicity, gender, age, income, and geographic location if communities are to have the tools they need to defend environmental and human health and if agencies are to fulfill their obligations under Executive Order 12,898 and Title VI.
6.6 Federal agencies conducting research on human health and the environment, and their technical assistance grant recipients, should give priority to the health impact of environmental hazards on minority and low-income communities, as they experience disproportionate exposure to environmental hazards.
6.7 Federal agencies conducting research on human health and the environment, and their technical assistance grant recipients, should include a participatory role for communities in research and data collection.
6.8 Federal agencies should develop and adopt, based on the best currently available scientific research, formal cumulative impact standards to assess adverse health impacts related to multiple and long-term exposure to various environmental hazards and pollutants.
6.9 Federal agencies should develop and adopt, based on the best currently available scientific research, formal cumulative impact standards that account for social, behavioral, and other factors that increase susceptibility to environmental hazards and pollutants.
6.10 Federal agencies should create, based on the best currently available scientific research, a presumption of the existence of an adverse health impact based on multiple and long-term exposure to various environmental pollutants.
6.11 Federal agencies should make providing technical assistance to affected communities a priority by earmarking funds for technical assistance programs.
6.12 Federal agencies should administer their technical assistance programs in such a way as to avoid unnecessarily complex application processes and delays in awarding funding. Timely access to scientific and technical information is essential to providing minority and low-income communities an equal opportunity to influence environmental decisions that present concerns about adverse health consequences.
6.13 Federal agencies should take great steps to ensure that scientific information and technical data relating to their environmental decisions are accessible to the affected populations by translating this information into lay terms, when doing so does not compromise the integrity of the information.
7. Integrating Environmental Justice into Agencies’ Core Missions
Executive Order 12,898 was intended to ensure that federal agencies incorporate the principles of environmental justice into their missions. In order to evaluate how well the federal agencies responded to the Executive Order requirement, the Commission examined the extent to which the agency has proposed and undertaken environmental justice initiatives and programs, and the extent to which the agency has drawn up and implemented outcome expectations and goals surrounding those initiatives and programs.
The Commission finds that there is inconsistency and unevenness in the degree to which agencies achieved integration of environmental justice into their core mission. While the four agencies have all begun implementing environmental justice concepts into their programs, generally, the agencies do not view environmental justice as a priority. In order to accomplish full agency integration, the Commission recommends the following actions:
7.1 Congress should direct the four agencies, their regional offices, bureaus, and operating administrations to prepare reports annually on their efforts to ensure adequate enforcement in their programs, with emphasis on the incorporation of environmental justice issues into their missions and the development of accountability standards.
7.2 Federal agencies should encourage states receiving federal funding for, for example, environmental, housing, or transportation programs, to create an Office of Environmental Justice to assess the disproportionate impact of those programs on minority and poor communities. The offices should have accountability measures in place, with reporting obligations back to the federal agencies.
7.3 Federal agencies should request, and Congress should approve, appropriate levels of environmental justice funding for current and future agency initiatives.
7.4 The federal government should implement and fully enforce its existing environmental laws and policies. Oftentimes, federal agencies do not need to significantly change, if at all, their current laws or policies in order to implement the Executive Order and respond to environmental justice concerns.
7.5 Federal agencies should augment the work they have done in implementing environmental justice at the program level by ensuring that applicable agency rules and regulations include explicit guidance on reducing the risk of adverse impacts on minority communities.
7.6 Federal agencies should continue to implement environmental justice programs in tribal communities. Where federal responsibilities and oversight for integrating environmental justice programs in tribal communities overlap, agencies should coordinate their efforts in addressing tribal needs.
7.7 Federal agencies should utilize the NEPA process to its full capacity in order to promote environmental justice for minority communities, by implementing regulations consistent with the intent of the Executive Order.
7.8 Once an agency determines that an environmental impact statement (EIS) is necessary, EPA, using its authority to review all EISs prepared by other federal agencies, and its authority under the Executive Order to ensure that agencies analyze environmental impacts on minority populations, should issue negative reviews if the other agencies fail to document any significant disparate impact on these communities relating to the proposed agency projects.
7.9 When developing the terms and conditions of federally issued permits, EPA should require that those permits address the concerns of minority communities and the emission exposures in those communities.
7.10 EPA should condition approval of state programs, which administer federal environmental laws, on the states’ addressing the concerns of minority communities and the emission exposures in those communities, as part of their permitting processes.
7.11 Federal agencies should require state and local zoning and land-use authorities, as a condition for receiving and continuing to receive federal funding, to incorporate and implement the principles of environmental justice in their zoning and land-use policies. This approach would start to address the disparity in the distribution of environmental and health burdens.
7.12 Federal agencies should use their current authority to withdraw funding to states that fail to enforce environmental laws adequately.
7.13 Federal agencies should reassign or devote equitable resources toward achieving environmental justice, which would assist them in integrating environmental justice into all of their programs and their missions.
8. Program Evaluation Criteria and Accountability
The Commission sought to determine whether the agencies have implemented environmental justice programs or initiatives, whether the agencies have set goals and expectations for those programs, how those goals and expectations are used to evaluate the programs’ impact or success, and what, if any, actions are taken to ensure accountability when goals are not met. The Commission finds that although agencies have begun integrating environmental justice concerns into their programs, generally, they have not put accountability measures into place, nor are expectations linked to ways in which success can be measured.
The Commission also finds that without accountability measures, it is difficult to track or review positive steps in environmental justice program implementation. The Commission finds that while most of the agencies have begun some form of environmental justice training, generally, the agencies have not developed evaluation criteria to assess if these courses assist staff in integrating environmental justice concepts into their duties and the agencies’ programs.
Therefore, the Commission makes the following recommendations to increase and improve the evaluation of programs, and to create accountability for results:
8.1 Federal agencies should set clear expectations for producing results in adversely affected communities that are directly linked to the agencies’ mission. Agencywide reporting that tracks their progress should reinforce these expectations.
8.2 EPA’s Accountability Workgroup should make its findings public, implement NAPA’s recommendations, and finalize its stated goal of establishing mechanisms to better track and evaluate progress toward achieving environmental justice objectives.
8.3 DOT’s Environmental Justice Coordinating Council should make its findings public and establish mechanisms to better track and evaluate DOT’s progress in integrating environmental justice into the agency’s mission.
8.4 Federal agencies should develop evaluation criteria and have scheduled evaluations of environmental justice programs and initiatives.
8.5 The commitment of senior leadership is critical, and high-level officials should be held accountable for effective program implementation. Appropriate incentives and disincentive measures should be used to inculcate environmental justice principles into agency management.
8.6 Strong leadership should be followed by the requirement of accountability by agency employees. The agencies must incorporate environmental justice performance standards into their employees’ job descriptions and performance evaluations. Failure of employees to appropriately consider the environmental and health impact of agency actions on minority and low-income communities, and to provide protections, should be reflected in their performance reviews.
8.7 In addition to the integration of environmental justice into the agencies’ programs, the agencies should create outcome expectations for their environmental justice initiatives and specific methods for measuring staff or manager progress toward achieving specific environmental justice goals.
8.8 Federal agencies should develop in more detail and implement accountability measures begun at the office and regional levels.
8.9 Federal agencies should ensure that staff can recognize when agency decisions will involve disproportionate impacts on minority communities. All training should be followed up with, for example, critical assessments, surveys, and feedback, both by agency staff who have been trained to assist communities, and ultimately by the communities, who are the intended recipients of staffs’ increased knowledge and sensitivity. Specifically, EPA should critically evaluate the effectiveness of its national workshop, “Fundamentals of Environmental Justice.”
9. Superfund and Brownfields Redevelopment
The Brownfields Revitalization and Environmental Restoration Act of 2001, signed by President George W. Bush in January 2002, is laudable in that it seeks to bring economic development to areas by cleaning up abandoned, contaminated sites and redeveloping them for commercial or residential use. The Commission finds, however, that there are inequities in the enforcement and cleanup of Brownfields that leave communities of color and poor communities at a disadvantage. In addition, Brownfields programs do not always result in beneficial reuse of properties in minority and poor communities.
The Commission also finds that the Superfund program is a valuable environmental tool. The Superfund program targets some of the worst hazardous sites in the country for environmental cleanup, many in communities of color and low-income communities. The Commission finds that changes in future funding of this program, specifically, the elimination of the “polluter pays” tax will adversely affect the needed cleanup activities. Furthermore, the Commission finds that the elimination of the tax comes at a time when Superfund spending is projected to increase.
Therefore, the Commission makes the following recommendations for the Superfund and Brownfields redevelopment programs:
9.1 Congress should review the funding scheme for the Superfund program to ensure that the program is effectively funded and administered. Reinstatement of the “polluter pays” tax would ensure that the Superfund program is appropriately funded and administered.
9.2 Congress should exercise its oversight authority to ensure that cleanup and redevelopment under the Brownfields program are implemented promptly and fairly so that sites in communities of color are not inadequately cleaned or the last to receive attention.
9.3 Federal agencies should create incentives for industry to use newer and cleaner technologies.
9.4 Federal agencies should work with communities, as well as state and local authorities, to assist these stakeholders in attracting “clean” industry to Brownfields areas.